Plaintiff, Jessica Moralli, brought a negligence action against
Lake County, Montana in the Twentieth Judicial District Court,
Lake County, Montana. Lake County contended that Ms. Moralli
negligently caused her own injuries. A jury found that Lake
County was 70% negligent and that Ms. Moralli was 30% negligent.
Defendant appeals from the judgment and order denying its
motion for judgment notwithstanding the verdict. We affirm.

5. Whether there is sufficient credible evidence to support the
jury's verdict.

Jessica Moralli pled guilty to criminal charges arising from a
hit-and-run accident in Polson, Montana in July of 1988 and was
sentenced to serve sixteen days in the Lake County jail. She
served eight consecutive days following her arrest and was allowed
to finish the remaining eight days of the sentence on weekends.
She served two of these days on September 6 and 7, 1988. All
ten days were served without incident in a women's cell with
a bathroom which included a full-length shower curtain. Each
time, Ms. Moralli was given a two-piece suit and a pair of slippers
to wear while she was in jail.

The remaining six-day sentence was subsequently amended, only
requiring Ms. Moralli to serve the four days from September 13
to September 16, 1988. When Ms. Moralli returned to the Lake
County jail on September 13, 1988 to serve the four days, jail
personnel placed her in a different cell. Ms. Moralli requested
footwear; none was given to her. She then requested that she
be allowed to wear her own socks or her own tennis shoes. Jail
personnel denied this request also.

Ms. Moralli and another witness testified that the cell Ms. Moralli
was placed in had a shower with a shower curtain ending eighteen
inches above the floor. Ms. Moralli testified about the accident
and her actions just prior to the accident as follows: She and
another inmate both took showers, after which Ms. Moralli returned
to the bathroom to use the toilet and to comb her hair. By this
time, up to one-half inch of water had accumulated on the floor
of the bathroom. As Ms. Moralli rose from the toilet and pulled
up her pants, the wet pant legs stuck to her heels and her feet
slipped out from under her. At the same time she arose from the
toilet she twisted her body away from the open doorway for privacy
reasons. As she slipped, she fell backwards, hitting her head,
shoulders and back against the wall.

The testimony indicates that Ms. Moralli's cellmates came to her
assistance when she fell. They notified the jailer on duty, Mr.
Fairchild, who did not respond. Hours later, a second jailer,
Mr. Emerson, after being informed of the fall, removed Ms. Moralli
from her cell and transferred her to a holding cell while he
made telephone calls to the Polson city judge to arrange for
her release from confinement and to Moralli's boyfriend to arrange
for a ride from the jail. Emerson advised Moralli's boyfriend
to take her to the hospital because she was injured. Moralli
saw a physician the next morning.

Ms. Moralli filed a claim against Lake County for injuries
suffered from the fall in its jail. At the time she fell,
she was barefoot. The floor surface was smooth concrete.
Ms. Moralli claimed that her bare feet, the soapy water
from the shower leaking onto the bathroom floor,
and the smooth concrete surface all combined to create
a dangerous condition resulting in her injuries
and that Lake County was negligent in operating the facility.
Since the time of the injury in the Lake County
jail, Moralli claims she has suffered from the injury
and incurred over $5,000 in medical expenses. At trial, Moralli
presented testimony from her chiropractor that she would continue
to incur medical expenses during her lifetime relating to the
1988 injury. The jury returned a verdict for Ms. Moralli
with damages totaling $35,400.00. Judgment was entered for
$24,780.00 plus interest and costs because the jury determined
that Moralli was 30% negligent.

I.

Did the District Court err in denying Lake County's motion for
a directed verdict?

Lake County contends that there was no credible evidence to warrant
submitting the case to a jury. A motion for a directed verdict
should only be granted when there is a complete absence of any
evidence to warrant submission to the jury and all factual inferences
must be viewed in the light most favorable to the nonmoving party.
Jacques v. Montana Nat'l Guard
(1982), 199 Mont. 493, 504, 649 P.2d 1319, 1325.
A directed verdict for the defendant is not proper
if reasonable persons could differ as to the conclusions
drawn from the evidence when considered in a light most favorable
to the plaintiff.
Weber v. Blue Cross of Montana
(1982), 196 Mont. 454, 464, 643 P.2d 198, 203.

Issue I and Issue V are so interrelated that it is best to discuss
them together. Issue V questions the sufficiency of the evidence
to support the jury's verdict. When there exists in the record
substantial evidence to support the jury's verdict, we will sustain
a district court denial of a motion for a directed verdict.
Krueger v. General Motors Corp.
(1989), 240 Mont. 266, 277-78, 783 P.2d 1340, 1347-48.
In short, a verdict is binding upon this Court
if it is based upon substantial evidence, although the evidence
may appear inherently weak. Our review of a jury verdict is very
narrow in scope. Substantial evidence need only be evidence which
from any point of view could have been accepted by the jury as
credible.
Kitchen Krafters, Inc. v. Eastside Bank of Montana
(1990), 242 Mont. 155, 164, 789 P.2d 567, 572.

In order to sustain a claim of negligence, Moralli must present
substantial evidence to prove that (1) the County owed a duty
to Moralli, (2) the County breached that duty, (3) the breach
was the actual and proximate cause of Moralli's injury,
and (4) that damages resulted.

1. What duty did Lake County owe to Moralli?

Lake County had a duty to exercise reasonable and ordinary care
for the life and health of the prisoner, to keep her safe and
protect her from unnecessary harm. Lake County also had a duty
to render medical aid when necessary, treat the prisoner humanely
and refrain from oppressing her.
Pretty On Top v. City of Hardin
(1979), 182 Mont. 311, 315, 597 P.2d 58, 60-61.
Clearly, Lake County had a duty to provide Moralli
with a reasonably safe accommodation during the period
of her incarceration.

2. Did Lake County breach this duty?

Ms. Moralli presented evidence that the county knew or should
have known that the condition of the bathroom floor was far from
ideal. Another inmate had fallen there within the previous month.
Pretty On Top
requires only reasonable and ordinary care for the
life and health of the prisoner.
Pretty On Top,
597 P.2d at 60.
However, evidence presented by Ms. Moralli indicates that
the condition of the floor in the bathroom was slippery and that
jail personnel knew the floor was slippery. Ms. Moralli also
presented evidence that she asked for footwear and when that
request was denied, she asked if she could keep her own footwear
and that request also was denied. The evidence presented by Ms.
Moralli also indicates that the county provided no medical assistance
although the jailer was aware that Ms. Moralli had fallen in
the cell's bathroom and that he later released her, advising
her boyfriend to take her to the hospital. At that time, Moralli
still had two days of her sentence to serve. We conclude that
there is substantial evidence from which the jury could properly
have found that Lake County breached its duty.

3. Did the County's conduct cause Moralli's injury?

A jailer is not liable for injury resulting from
an inmate's intentional conduct.
Pretty On Top,
597 P.2d at 61.
This issue often arises in cases which result from
a suicide, as in
Pretty On Top.
Lake County contends that Ms. Moralli acted intentionally
by entering the bathroom, that she was aware
of the floor condition at that time and should
have been careful — that her own negligence caused her
injury. Lake County also contends that the proximate cause
of her injury was when she hooked her pant leg on
her heel. Again, viewing the evidence in a light
most favorable to Ms. Moralli, the jury
could have found that it was foreseeable that the floor
would become wet and slippery from inmates' showers,
that footwear or some other protection was a
necessary precaution against slips and falls, and that
the inmates might need to use the bathroom facility when the
floor was wet with standing water. Ms. Moralli's intentional
conduct was insufficient to break the chain of causation.

We conclude that the county has failed to demonstrate a complete
absence of evidence to warrant submission of the case to the
jury. We hold that the District Court properly denied the County's
motion for a directed verdict.

We further conclude that the record contains substantial evidence
to support the jury's verdict. We therefore hold there was sufficient
credible evidence to support the jury's verdict.

II.

Did the District Court err by admitting evidence of medical expenses
without proper foundation?

Lake County contends that Ms. Moralli provided no foundation that
the expenses reflected on Exhibit 3, a summary of medical expenses
resulting from the accident, were related to the slip and fall
in the Lake County jail. In
Cain v. Stevenson
(1985), 218 Mont. 101, 706 P.2d 128,
the appellant made a similar argument. We held that
a claimant is competent to testify as to his past and
present condition, but that his testimony, standing alone, is
not sufficient to establish cause for those aspects of an
injury not apparently related to the accident in question.
Cain,
706 P.2d at 131.
We noted that:

not all injuries require medical expert testimony to
prove permanency or causation.
(It has been held that medical testimony is not necessary to
prove permanent injuries or their cause where) the
nature of the injury is such that laymen can plainly
see, or infer from the injury, its cause and that it will
be permanent, such as the loss of a limb. Respondent's back
injury was not such an injury.

Cain,
706 P.2d at 131.

In
Cain,
we held that inadequate proof of permanent injury
required a reversal, but only on the issue of damages.
Cain,
706 P.2d at 131-32.
Moralli's testimony relating to past and present condition
was competent under
Cain,
but she could not testify to future damages. That required
qualified medical testimony from an expert witness.
Dr. William F. Risch, Moralli's treating chiropractic
physician for the six-month period prior to trial,
testified to his history, observations and treatment and gave
his opinion that more likely than not her injury was permanent.

A plaintiff is not required to establish the causal connection
between the accident and her injuries with certainty; she
merely must do so with reasonable certainty or
by a preponderance of the evidence.
Allers v. Willis
(1982), 197 Mont. 499, 505, 643 P.2d 592, 595-96.
Moralli testified that she had been free of symptoms from a prior
injury for five years before this injury. Together, Moralli's
testimony relating to her past and current condition and
Dr. Risch's testimony relating to her current and
future condition were sufficient foundation for medical expenses.

We hold that the District Court did not err in admitting evidence
of medical expenses.

III.

Did the District Court err in refusing to instruct the jury on
premises liability?

Lake County proposed and the District Court refused the following
jury instruction:

The defendant has the duty to exercise ordinary care to keep his
premises reasonably safe for all persons who foreseeably might
come upon them, and to warn such persons of any hidden danger
upon such premises.

Neither of the parties contended that there was a hidden danger
lurking on the premises. Rather, the County primarily contended
that the condition was known or obvious and that Ms. Moralli
was contributorily negligent by making use of the bathroom in
such manner. While the above instruction is a correct statement
of the law in Montana, it is inappropriate in a case such as
this one where there is no hidden danger on the premises.

Lake County also proposed and was refused two other instructions.
Proposed instruction 16 provided:

The defendant is not liable to plaintiff for physical harm caused
by any activity or condition of the jail facility whose danger
is known or obvious to the plaintiff, unless defendant should
have anticipated the harm despite such knowledge or obviousness.

This instruction, from
Kronen v. Richter
(1984), 211 Mont. 208, 211, 683 P.2d 1315, 1317,
relates to non-liability of a business owner to
a business invitee for conditions which are known or obvious
to the plaintiff and is inappropriate for the facts of this case.

Proposed instruction 17 states that a landowner is entitled to
assume that the plaintiff will see and observe that which would
be obvious through the reasonably expected use of an ordinary person's
senses. Ms. Moralli freely admitted that she saw the water on
the floor. She had no choice but to enter the bathroom. This
instruction is also inapplicable to the facts of this case.

Section 25-7-301(5), MCA, provides: . . . In charging the jury,
the court shall give to it all matters of law which the court
thinks necessary for the jury's information in rendering a verdict.

In giving jury instructions, the trial court is required to give
the relevant law favoring both sides.
Demaree v. Safeway Stores, Inc.
(1973), 162 Mont. 47, 508 P.2d 570.
The District Court gave a general negligence instruction and
an instruction on the duty of care for jail
operators as established by
Pretty On Top,
597 P.2d at 60-61.
When taken as a whole, if the instructions state the law
applicable to the case, a party cannot claim reversible error.
Goodnough v. State
(1982), 199 Mont. 9, 647 P.2d 364.
By giving the general negligence instruction and the instruction
describing the duty of care owed by the ordinary and prudent
jailkeeper, the District Court gave the jury a pertinent summary
of the applicable Montana law. We cannot say that Lake County
was prejudiced by the District Court's giving these instructions
and refusing to give Lake County's proposed instructions numbered
15, 16 and 17.

We hold that the District Court did not commit reversible error
by refusing to give Lake County's proposed instructions relating
to the duty that Lake County owed to Ms. Moralli.

Lake County objected twice to comments made by Ms. Moralli's counsel
during his closing argument. Lake County contends that these
comments prejudiced the jury and prevented the County from obtaining
a fair trial.

The first such comment referred to Mr. Emerson's absence as a
witness for Lake County. Emerson, the jailer on duty when Ms.
Moralli was released, was still employed by the County at the
time of the trial. Counsel for Ms. Moralli stated that the County
did not have Emerson testify because "he would have hurt their
case very badly." Lake County objected to this remark. The District
Court sustained the objection and gave a curative instruction
to the jury, advising them that they were not allowed to consider
any statements made by plaintiff's attorney as to what
Emerson's testimony may or may not have been. Plaintiff's
counsel contends that the comments regarding Mr. Emerson
were fair statements as to the inference that
could be drawn by the County's failure to call a crucial
witness, and were not improper comment.

Improper argument requires reversal only when prejudice has resulted
which prevented a fair trial.
Gunnels v. Hoyt
(1981), 194 Mont. 265, 276, 633 P.2d 1187, 1194.
In
Gunnels,
the defense counsel made improper comments upon and
reference to excluded evidence, which indicated to
the jury that the plaintiff was concealing evidence.
We concluded that the district court properly instructed
the jury "not to draw any inferences from rulings on evidence,
not to consider rejected evidence, and not to conjecture or draw
any inferences as to what an answer might have been, or as to
the reason behind any objection."
Gunnels,
633 P.2d at 1194.
We could not say that any prejudice resulted to the plaintiff in
Gunnels.
The argument in this case was even less prejudicial.
Plaintiff's counsel did not comment on excluded evidence. He
did, however, comment on what testimony might have been. This
was improper, but sufficiently cured by the District Court's
instruction regarding the comment. Plaintiff's counsel's reference
to private logs kept by county employees was similarly handled
by the District Court.

Lake County argues that the best solution is for the Court to
hold that prejudice will be presumed where counsel offers improper
argument or comments during trial and would have us place the
burden on the offending party to establish a lack of prejudice.
We decline to do so.

The other comments that Lake County objected to involve Ms. Moralli's
counsel's remarks about county employees taking him to the wrong
jail cell and the jail supervisor not giving certain documents
to him, followed by his remark that he did not feel there was
an intentional deception. This objection, overruled by the District
Court, involves what the County calls "an attempt to infer to
the jury that there was some sort of deception on the County's
part." However, Ms. Moralli's counsel's comments related to properly
admitted evidence. The jury can make inferences from properly
admitted evidence.

We conclude that these arguments, although not ideal, do not constitute
reversible error.

V.

Is there sufficient credible evidence to support the jury's verdict?

We addressed this issue along with Issue I and concluded that
there was sufficient credible evidence from which the jury could
find in favor of Ms. Moralli.